Threats Against the President: Is Ted Nugent a “True Threat?”

At the National Rifle Association (NRA) Convention on April 14, Ted Nugent made this statement: “If Barack Obama becomes the President in November, I will either be dead or in jail by this time next year.” This is not the first time Nugent has made inflammatory remarks about the President.  He  also compared President Obama to coyotes that need to be shot, and mentioned that people should “ride into that battlefield and chop their heads off in November.”  The Secret Service investigated each of these statements and declined to arrest him, stating the situation had been resolved.

Title 18, Section 871 of the United States Code, makes it a crime to make “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.”  In light of this statute, why isn’t Ted Nugent behind bars?  Two reasons have kept the musician free. First, federal courts have found that a person must have made a true threat, rather than a passing comment or political statement.  Second, the First Amendment of the United States Constitution broadly protects individual and political expression.

The Supreme Court noted both of these requirements in Watts v. United States.  In that case, the Court refused to sustain a conviction against Watts, who stated “[i]f they ever make me carry a rifle, the first man I want to get in my sights is LBJ[.]”  While the Court held the government had a “valid interest . . . in protecting the safety” of the President, the Court viewed this statute narrowly.  In fact, the Supreme Court stated  the government must show a true threat, not just “political hyperbole.”  Further, the Court found that the language of the statute must be interpreted “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In this case, the Secret Service apparently found that Nugent is not a true threat against President Obama.  However, do these statements really deserve this protection?  Nugent’s statements are markedly different than those of Watts’.  Watts commented on the draft and his opposition to the war.  Ted Nugent, on the other hand, was not engaging in public discourse.  Rather, he appears to have been pandering to the crowd and looking for publicity.  If his comments to the NRA were more specifically about the Second Amendment, for example, the policy noted in Watts v. United States, would be more applicable.  But does Nugent’s contention that he would “either be dead or in jail” if the President were re-elected really add anything to the “debate on public issues[?]”

Even if Nugent’s statements are not protected by the First Amendment, Nugent has likely not made any plans to carry out his threat.  In 2008, Walter Bagdasarian was arrested after posting on Twitter threats to shoot President Obama.  Bagdasarian was later released because prosecutors could not prove that he had plans to shoot the president. The fact that a .50 caliber rifle in his home, which was the same caliber weapon he threatened to shoot the President with was found, it was still insufficient to warrant prosecution.  If Bagdasarian could not be prosecuted under those circumstances, prosecutors would be hard pressed to charge Nugent.

Regardless of the precedent, Nugent’s comments are particularly concerning.  This is the third time he has made such inflammatory remarks.  Requiring the Secret Service to investigate repeated threats (even if they are veiled threats) against the President is a waste of our resources.  This President has  received 400% more threats than former President George W. Bush—about thirty threats a day.  Ted Nugent should not be allowed to add to this burden by issuing threats for publicity.

Bonnie Lindemann

Blogger, Criminal Law Brief